by Matt Barr

Congressional succession after catastrophic terror attack

Or, another blast from the past! I link to some of my formerly (web-) published essays on the top right of my blog; while searching for something in my My Documents archive tonight I came across something I wrote and submitted to, I think, the Christian Science Monitor for publication consideration, but they never ran it, and I let it just sit there. Since I still think it's a good idea, I thought I'd reproduce it here.

Recruit Governors, state legislators to fill in for Congress in the event of a catastrophic terror attack

Contingency planning for a terror attack catastrophic enough to kill or incapacitate more than half of Congress is horrific enough to be almost unthinkable. Sen. John Cornyn, R-Tx., has undertaken an effort to amend the Constitution to provide for a working legislative branch in such an event, and deserves credit for it.

The Constitution does not provide for the replacement of Representatives at all before the next scheduled even-year election. It does provide, via the Seventeenth Amendment, for the replacement mid-term of Senators who die, but not those who might be alive but incapable of serving, due to, say, a biological terror attack. The Constitution requires a quorum be present for Congress to do business.

Cornyn, chair of the Senate Subcommittee on the Constitution, Civil Rights and Property Rights, proposes an amendment which would authorize Congress to pass laws providing for emergency congressional succession in a catastrophic event. He would then favor state-level lawmaking to provide for succession on whatever basis each state prefers.

This is a thoughtful approach. But in practice, it would bring to the fore problems – in the quality of replacement delegations and in the appearance of chaos – that are, happily, easily addressed by a simple change of focus. Why not provide that in the event enough Senators are dead or incapacitated that a quorum is not possible, the governors of the States are dispatched to Washington to become temporary Senators?

And if a quorum is similarly not possible in the House, why not provide that they should be replaced on a temporary basis by sitting state legislators? The states can pick which ones.

During a time when half of Congress is dead or incapacitated, it is preferable to have the most important, powerful, engaged, and politically visible and familiar men and women in a state filling in. Appointments would be likely to turn out retired Senators and Representatives, Governors, and others from the private sector whose careers of public service, if they ever had them, are behind them, or minor, possibly unelected state government officials. A sitting Governor who would be willing to serve as a temporary Senator – and whose experience, visibility and statesmanship could dearly be needed in Washington – may hesitate, for fear of being perceived by his or her constituents as abandoning the state during a time of national trauma.

This approach also mitigates the appearance of a nation scrambling to get the government back together after a devastating terror attack. Surely, the states can provide for quick succession when necessary. But in reality we, and the world, would be in for days of news coverage of 50 different procedures churning out the right people to send to Washington. That frustrating and unfortunate environment is avoided under the Presidential succession law, which lists, in order, who ascends in the event of the loss of both the President and Vice President, along with possibly others.

Queuing Governors and sitting legislators to be temporary members of Congress would provide speed and certainty at a time when it would be to our advantage to snap into action, both in appearance and reality. States would still need to select which sitting legislators would replace House members, but that is less seemingly chaotic than 50 different Governors sorting out who to appoint, or, certainly, than hasty special elections.

Infusing Congress during a time of crisis with the political leaders and governors (small ‘g’) of the states taps a rich, existing resource in a time when our best governors (small ‘g’) are most needed. Whatever crimp in state business there might be during the crisis, it will be far less pronounced than the crisis in Washington. The states can provide for their own succession procedures for their governments under such circumstances: Naturally, a Lieutenant Governor could succeed to Governor temporarily. Here in Ohio, we have 99 state representatives and 33 senators; I’m sure we can spare 20 or fewer out of 132 to fill in for our House delegation without significantly handicapping state government.

Our nation’s ability to function after an attack that so paralyzes Congress will depend on the efforts of our best, most vigorous and visible politicians. Providing for sitting Governors and legislators to temporarily serve in Washington during such a crisis ensures our resources are best deployed to respond to it as quickly as possible. During its hearings on emergency Congressional succession, the Sen. Cornyn’s Subcommittee should give careful thought to a proposal of this nature.

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